Fracking Litigation: Floodgates Still Not Opened


Since a jury awarded $2.9 million to a Texas family in the first successful "fracking case" in the United States back in April 2014, there was concern that the floodgates for fracking litigations across the country had finally been opened. In preparation for the potential onslaught, oil and gas companies prepared for the worst. However, since the jury award last year, the limited number of fracking-related cases filed across the country seems to indicate that the concerns surrounding fracking litigation may have been unfounded, or at the very least, premature.

Fracking, short for hydraulic fracturing, is a controversial technique in which drillers pump large amounts of water, sand, and chemicals into a shale or rock formation in order to release oil or natural gas. In Parr v. Aruba Petroleum, et al. (Case No. 11-1650 - Dallas County, Texas), Plaintiffs Bob Parr and Lisa Parr claimed that fracking around their forty-acre ranch exposed them and their livestock to hazardous gases and industrial chemicals resulting in various types of injuries including shaking, vomiting, nosebleeds, vision problems, nausea, rashes, and central nervous damage. Plaintiffs even claimed that the fracking was so noxious that at times, they left their ranch and spent time living out of Bob Parr's office located away from the fracking. Although there were several oil companies initially named in the lawsuit, Aruba Petroleum was the lone-remaining defendant at the time of trial. According to the Parrs, Aruba operated twenty-two wells in a two mile radius of their ranch. The theory was that based on the poor management and lack of emission controls by Aruba, Aruba created a private nuisance and exposed Plaintiffs to harmful emissions, volatile organic compounds, toxic air pollutants, and diesel exhaust. Furthermore, there were occasions where their residence would vibrate and shake, allegedly from the well operations. After a two week trial and a 5-1 verdict, the jury awarded the Parrs $275,000.00 for loss of property value, $2.4 million for past physical suffering and mental anguish, and $250,000.00 for future harm.

A careful reading of the above synopsis will reveal why the concerns regarding Parr setting precedent for nationwide fracking litigation may have been overstated. Generally, fracking litigation involves allegations associated with seismic activity, water contamination, or failure to properly dispose of hazardous chemicals. However, the Parr case dealt more with the nuisance of emissions created in the fracking process than hazards associated with fracking, no different than any environmental pollution lawsuit regarding emissions from a refinery or factory. Despite Parr not being a fracking case per se, there have been twenty-six fracking-related cases filed in state and federal court since the Parr award was issued. Specifically, Colorado, New York, Ohio, Oklahoma, and West Virginia have all seen such cases, but a majority of the litigation is concentrated in Arkansas, Pennsylvania, and Texas. As expected, the factual allegations in each of the cases are similar to Parr in that the plaintiffs allege that the release of gases and hazardous chemicals cause health injuries, loss of quality of life, and emotional distress. However, the cases also allege facts more closely related to the fracking process itself including property damage from the discharge and spilling of chemical and industrial waste. Of the twenty-six lawsuits, only nine are currently pending with the remaining cases having been settled or dismissed on the merits.

Based on the cases filed in the aftermath of Parr, the question still remains whether the legal arena has truly seen a fracking case go to verdict. Undoubtedly, Parr opened the door for increased litigations against oil and gas companies, but since only twenty-six fracking-related lawsuits have been filed, some with tenuous allegations associated with fracking itself, it is difficult to assert, at this moment in time, that fracking litigation has officially staked its claim in the legal arena.

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